Citation Nr: 9820447
Decision Date: 07/02/98 Archive Date: 07/13/98
DOCKET NO. 97-24 828 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Whether new and material evidence has been submitted to
reopen the veteran’s claim of entitlement to service
connection for a right knee disorder, secondary to the
veteran’s service-connected left knee disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
J. A. McDonald, Counsel
REMAND
The veteran served on active duty from August 1960 to March
1969. This case comes before the Board of Veterans' Appeals
(hereinafter Board) on appeal from the Department of Veterans
Affairs (hereinafter VA) regional office in St. Petersburg,
Florida (hereinafter RO).
The veteran contends that his service-connected left knee
disorder has aggravated his nonservice-connected right knee
disorder, and therefore, entitlement to service connection
for a right knee disorder is warranted. The issue of
entitlement to service connection for a right knee disorder
secondary to the veteran’s service-connected left knee
disorder was denied by a Board decision dated in April 1987.
Therefore, that decision is final. 38 U.S.C.A. § 7104 (West
1991). To reopen a finally denied claim, a veteran must
submit new and material evidence. 38 U.S.C.A. §§ 5108, 7104
(West 1991); 38 C.F.R. § 3.104 (1997). Evidence is new when
it is not merely cumulative of other evidence on the record.
Material evidence is relevant to, and probative of, the issue
at hand, and of sufficient weight and significance that there
is a reasonable possibility that when viewed in the context
of all the evidence, both old and new, the additional
evidence will change the disposition of the claim. 38 C.F.R.
§ 3.156 (1997); Vecina v. Brown, 6 Vet. App. 519, 522 (1994);
Mintz v. Brown, 6 Vet. App. 277, 280 (1994); Colvin v.
Derwinski, 1 Vet. App. 171, 174 (1991); see Manio v.
Derwinski, 1 Vet. App. 140, 145 (1991).
In support of his claim to reopen, the veteran submitted
evidence that he deemed to be “new and material.” However,
upon review, the RO determined the documents to be submitted
to be duplicative and/or cumulative of evidence already
considered by the Board in its 1987 decision. As such, the
RO noted in the supplemental statement of the case issued in
March 1998, that “[t]he duplicate evidence provided by the
veteran is being returned with this supplemental statement of
the case. The veteran should be made aware that only one
copy is needed in the claims folder.”
Although a procedure of making copies for the claims file of
original documents and returning the original documents to a
veteran where he requests that the original documents be
returned to him is probably a harmless procedure in most
cases, the Board emphasizes that a procedure which involves
returning duplicate copies of evidence to a veteran --
especially in a case where the issue is whether the evidence
submitted is new and material evidence to reopen a claim --
is not harmless in that, in most cases as in this one, such a
procedure will require the case to be remanded because the
procedure impedes the Board’s review of the evidence on
appeal. In other words, the Board’s review of whether
documents submitted by the veteran constitute “new”
evidence for the purpose of reopening his claim or whether
those documents are duplicates of, or are cumulative of,
evidence already of record is hampered where the documents in
question are not in the claims file for the Board’s review
(or, perhaps in a later appellate stage, for review by the
United States Court of Veterans Appeals (hereinafter Court)).
The Board (and the Court) must be able to examine the newly
submitted evidence and compare it to the old evidence in the
file to determine whether the newly submitted evidence is
duplicate or cumulative evidence. Because the RO returned
evidence to the veteran rather than placing it in the claims
file, this case must be remanded so that the RO can ask the
veteran to resubmit the evidence that he submitted in
conjunction with his claim to reopen so that this evidence
can be reviewed on appeal.
Further, in Allen v. Brown, 7 Vet. App. 439 (1994) (en banc),
the Court held that where service connection is sought on a
secondary basis, service connection could be granted for a
disability which was not only proximately due to or the
result of a service-connected condition, but could also be
granted where a service-connected disability had aggravated a
nonservice-connected disability, with compensation being paid
for the amount of disability which exceeded "the degree of
disability existing prior to the aggravation." The Court
held, in part, that " . . . pursuant to § 1110 and
§ 3.310(a), when aggravation of a veteran's
nonservice-connected condition is proximately due to or the
result of a service-connected condition, such veteran shall
be compensated for the degree of disability (but only that
degree) over and above the degree of disability existing
prior to the aggravation." Id. at 448.
Allen is pertinent to the issue on appeal as it is being
sought on a secondary basis. The Board notes that when a
question has not been addressed by the RO, consideration must
be given as to whether the veteran has been given adequate
notice of the need to submit evidence or argument on the
question. Bernard v. Brown, 4 Vet. App. 384, 394 (1993).
For the reasons noted above, the case is REMANDED to the RO
to ensure full compliance with due process requirements
through completion of the following development:
1. The RO must send the veteran a letter
and request that he resubmit the evidence
which he submitted in conjunction with
his claim that was returned to him with
the supplemental statement of the case
issued in March 1998. He need only
resubmit the evidence returned to him by
the RO. He should be afforded a
reasonable time to resubmit the evidence.
He may also submit any additional
evidence that he wishes to be considered
to reopen his claim.
2. The veteran should be afforded a VA
orthopedic examination to determine the
nature of the veteran’s right knee
disorder. All pertinent symptomatology
and findings should be reported in
detail. Any indicated diagnostic tests
and studies should be accomplished, to
include x-rays. The examiner should
express an opinion as to the following:
(1) the etiology of any current right
knee disorder; (2) whether any right knee
disorder is related to the veteran's
service-connected left knee disorder; and
(3) whether the veteran's service-
connected left knee disorder aggravates
any right knee disorder found. In
particular, concerning the question of
aggravation, the examiner should address
each of the
following medical issues: (a) the
baseline manifestations which are due to
the effects of any right knee disorder;
(b) the increased manifestations which,
in the examiner’s opinion, are
proximately due to the service-connected
left knee disorder based on medical
considerations; and (c) the medical
considerations supporting an opinion that
increased manifestations of any current
right knee disorder are proximately due
to the service-connected left knee
disorder. The claims file must be made
available to the examiner prior to the
examination to facilitate a thorough,
longitudinal review of the evidence.
3. When all the evidence has been
assembled, the RO should, in a formal
decision, readjudicate the claim to
reopen the finally denied claim for
service connection for a right knee
disorder secondary to the veteran's
service-connected left knee disorder, to
include consideration of the holding in
Allen, based on whether new and material
evidence has been submitted.
4. If the claim cannot now be allowed,
the veteran and his representative should
be provided a supplemental statement of
the case. After they have had an
adequate opportunity to respond, the
appeal should be returned to the Board
for appellate review.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the Court for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the regional offices to provide expeditious
handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
M. S. SIEGEL
Acting Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).
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